Posted by rjbiii on March 14, 2008
The March Issue of Litigation News (no link available to current issue) contains an article relating to the Admissibility of text and instant messages. According to the article, the major challenge for authenticating the messages is “usually proving the identity of the persons in the conversation.” These challenges are, however, navigable. To wit:
The New York Appellate Division, for example, recently held that the trial court properly admitted an Internet text message that had been authenticated strictly on the basis of circumstatial evidence. People v. Pierre. The sender, a defendant in a murder trial, allegedly transmitted a message to the victim’s cousin, stating that he did not want the victim’s baby. The prosecution did not ask the Internet service provider to authenticate the message, and the witness who testified to its origination did not print or save the message.
Even so, the witness testified that she knew the defendant’s screen name, and she had sent an instant message to that name. The Appellate Division noted that the defendant had sent the witness a reply that would have made no sense unless it had come from the defendant. Most importantly, there was no suggestion that anyone had impersonated him. Thus, the court found that these factors were sufficient to warrant admission.
The article contrasts this situation with a decision by a California court to exclude a text message, because prosecutors failed to properly authenticate it, and circumstances were such that more than one person could have sent it. The Second Circuit recently rejected a court’s decision to admit a chat session’s transcript made by cutting a pasting the text from the chat window into another file format (presumably Word?). The article concludes by emphasizing the need for attorneys to engage experts:
“As a practical matter,” says Steven A. Weiss, Chicago, former Co-Chair of the Section’s Technology for the Litigator Committee, “because of the myriad of devices being used to send and receive electronic messages, lawyers will usually need an IT expert to access and retrieve IMs and text messages, and to explain to the cour how the information is stored in a particular device and how it was retrieved.”
Posted in Admissibility of ESI, Articles, Authentication, Chat Room Content, Data Sources, Texting, Trends | Leave a Comment »
Posted by rjbiii on September 22, 2007
Many of the same foundational issues found encountered when authenticating website evidence apply with equal force to text messages and internet chat room content; however, the fact that chat room messages are posted by third parties, often using “screen names” means that it cannot be assumed that the content found in chat rooms was posted with the knowledge or authority of the website host.
One commentator has suggested that the following foundational requirements must be met to authenticate chat room evidence:
- [e]vidence that the individual used the screen name in question when participating in chat room conversations (either generally or at the site in question);
- [e]vidence that, when a meeting with the person using the screen name was arranged, the individual … showed up;
- [e]vidence that the person using the screen name identified [himself] as the [person in the chat room conversation];
- evidence that the individual had in [his] possession information given to the person using the screen name;
- [and][e]vidence from the hard drive of the individual’s computer [showing use of the same screen name].
Courts also have recognized that exhibits of chat room conversations may be authenticated circumstantially.
- (References In Re F.P., A Minor, in which the defendant argued that the testimony of the internet service provider was required, or that of a forensic expert. 878 A.2d at 93- 94). The court held that circumstantial evidence, such as the use of the defendant’s screen name in the text message, the use of the defendant’s first name, and the subject matter of the messages all could authenticate the transcripts.
- (References United States v. Simpson, the court held that there was ample circumstantial evidence to authenticate printouts of the content of chat room discussions between the defendant and an undercover detective, including use of the e-mail name of the defendant, the presence of the defendant’s correct address in the messages, and notes seized at the defendant’s home containing the address, e-mail address and telephone number given by the undercover officer. 152 F.3d at 1249).
- (References United States v. Tank, the court found sufficient circumstantial facts to authenticate chat room conversations, despite the fact that certain portions of the text of the messages in which the defendant had participated had been deleted. 200 F.3d at 629-31). There, the court found the testimony regarding the limited nature of the deletions by the member of the chat room club who had made the deletions, circumstantial evidence connecting the defendant to the chat room, including the use of the defendant’s screen name in the messages, were sufficient to authenticate the messages.
Based on the foregoing cases, the rules most likely to be used to authenticate chat room and text messages, alone or in combination, appear to be:
- 901(b)(1) (witness with personal knowledge) and
- 901(b)(4) (circumstantial evidence of distinctive characteristics).
Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).
Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, Chat Room Content, D. Md., FRE 901(b)(1), FRE 901(b)(4), Magistrate Judge Paul W. Grimm, Texting | Leave a Comment »
Posted by rjbiii on September 21, 2007
Law.com has posted a New York Law Journal article written by defense attorney Ken Strutin that discusses the procedural challenges of admitting text from IM and texting technologies in court for criminal cases.
Instant messaging is an increasingly popular medium that’s sometimes an important link in the prosecution’s case. As with every new communication tool, it brings new challenges for criminal procedure.
Mr. Strutin describes how the fourth amendment’s protection of privacy factors into the equation, and discusses a number of cases in which courts have ruled on the matter.
While the science of surveillance continues to advance, new techniques and technologies must still meet the acid test of the Fourth Amendment. The probable cause and particularity requirements have been interpreted to prevent “roving commissions” to seize conversations overheard through listening devices,  and today ought to apply to messages captured through e-mail or IM.
The author does not address the issue of IM in the context of a civil action, but criminal procedures are, in the aftermath of Enron and the like, more relevant than ever for corporations.
Posted in Admissibility of ESI, Articles, Instant Messaging, Texting | Leave a Comment »